1. (Deleted) 2. Nand Lal Ram 3. Lain Ram both sons of Baij Nath v. 1. Bhola Sao 2. Gokhul Sao 3. Ram Awtar Sao, all sons of late
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.40 of 2013 ------ 1. (Deleted) 2. Nand Lal Ram 3. Lain Ram both sons of Baij Nath Ram. All are resident of Mohalla- Abadganj, P.O. & P.S.-Daltonganj, Dist.-Palamau 4. Gita Devi, w/o Janak Ram, resident of Mohalla-Karamtoli Chowk, Near Maharaja Hotel, P.O.-Ranchi, P.S.-Lalpur, Dist.-Ranchi 5. Lal Mohan Bhuiyan, s/o late Panchu Bhuiyan, resident of Mohalla- Abadganj, P.O. & P.S.-Daltonganj, Dist.-Palamau .... .... …. Appellants Versus 1. Bhola Sao 2. Gokhul Sao 3. Ram Awtar Sao, all sons of late Dwarika Sao 4. Most. Tetri Kuer, w/o late Hari Prasad Sao 5. Santosh Kumar 6. Arbind Kumar 7. Ajay Kumar All sons of late Hari Prasad Sao 8. Most. Rajo Kuer, w/o late Dip Narayan Sao, all resident of Mohalla- Abadganj, Town-Daltonganj, P.O. & P.S.-Daltonganj, Dist.-Palamau ... .... …. Respondents For the Appellants For the Respondents ------ : Mr. Manjul Prasad, Sr. Advocate : Mr. Raj Kumar Prasad, Advocate : Mr. Aniket Rohan, Advocate : None ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned Senior Advocate appearing for the appellants. 2 No one turns up on behalf of the respondents in-spite of repeated calls even though notice has validly been served upon the respondents. Hence, the hearing of this second appeal is taken up ex- parte. 3 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 1 Second Appeal No. 40 of 2013 24.01.2013 passed by the learned District Judge-II, Palamau at Daltonganj in Title Appeal No. 43 of 1990 whereby and where under,
Legal Reasoning
the learned first appellate court allowed the appeal and set aside the judgment and decree passed by the learned trial court being the learned First Additional Munsif, Daltonganj in Title Suit No. 54 of 1987 dated 30.08.1990 by which the First Additional Munsif, Daltonganj, Palamau dismissed the suit without costs. 4 The brief fact of the case is that the plaintiff-respondents filed Title Suit No. 54 of 1987 in the court of Munsif, Daltonganj at Palamau with the prayer for declaration of right, title and possession of the plaintiffs over the schedule land of the plaint and confirmation of the possession. The plaintiffs further prayed for declaration that sale deed nos. 6622 and 6669 of 1984 executed by Lal Mohan Bhuiyan in favour of Kismatiya Devi have in no way affected either the title or possession of the plaintiffs over the suit land and the said two sale deeds are devoid of conferring of title and possession of the suit land being sham transaction hence, void ab initio. The plaintiffs made a further prayer for mandatory injunction restraining the defendant no.1 from causing any disturbance in the peaceful possession of the plaintiffs over the suit land by making any construction in any manner whatsoever, cost of the suit and other reliefs. 5 The case of the plaintiffs in brief is that Panchu Bhuiyan the father of the defendant no.2 was recorded as the raiyat of the land described in the schedule of the plaint. After his death the defendant no.2 inherited the suit land along with others. The defendant no.2 sold 19 decimals of land of plot no. 775 through registered sale deed 2 Second Appeal No. 40 of 2013 no. 8966 dated 30.09.1969 for a consideration money of Rs.2,500/- to the plaintiffs. It was agreed between the plaintiffs and the defendant no.2 that payment of consideration money of the sale deed would not be condition precedent for passing the title and possession of the suit land to the plaintiffs and accordingly the sale deed was executed and registered. In the sale deed, it has clearly been mentioned that the defendant no.2 shall receive the consideration amount afterwards but the title and possession is passed to the plaintiffs on the date of execution of the sale deed and the plaintiffs came in possession over the purchased land measuring 19 decimals. Out of total consideration amount of Rs.2,500/- before the registration of the sale deed, the plaintiffs paid Rs.700/- to the defendant no.2 and on 30.09.1969 promised to pay the balance consideration amount to the defendant no.2 after a month or two. The plaintiffs tendered the balance amount of consideration of Rs.1,800/- to the defendant no.2 in December, 1969 and demanded the registration receipt for taking delivery of the registered sale deed from the registration office but the defendant no.2 proposed that out of 5 kathas of the lands sold by the defendant no.2 to the plaintiffs, the plaintiffs has to sell 1 katha in the western part of the land sold to him adjacent to the unsold land of plot no. 775 of the defendant no.2. The plaintiffs did not agree to the proposal. The defendant no.2 avoided receiving the remaining consideration amount and also avoided to hand over the registration receipt to the plaintiffs. Ultimately, the plaintiffs agreed to sell 1 kathas out of 5 kathas of land on the proportionate price of Rs.500/- and accordingly the plaintiffs executed and registered a sale deed in favour of the 3 Second Appeal No. 40 of 2013 defendant no.2 for 3… decimals of land out of 19 decimals of land on 17.03.1970 and handed over the registration receipt to the defendant no.2 for taking delivery of the sale deed and also delivery of possession of 1 kathas out of 5 kathas purchased by the plaintiffs. It was agreed that the amount of consideration of Rs.500/- will be adjusted from the balance consideration amount of Rs.1,800/- thus after this adjustment Rs.1,300/- remained due to the defendant no.2 as consideration amount. The plaintiff no.1 namely Bhola Sahu thereafter went to the defendant no.2 with Rs.1,300/- being the balance consideration amount and tendered the same to the defendant no.2 but the defendant no.2 avoided receiving the same and did not hand over the registration receipt for taking delivery of the sale deed. The defendant no.2 through his lawyer gave a notice dated 27.08.1970 and demanded payment of the balance consideration amount of Rs.1,300/- and in response to the same the plaintiff no.1 paid Rs.1,300/- to the defendant no.2 on 10.09.1970 and obtained the receipt of the same and defendant no.2 told the plaintiffs that the original sale deed which the defendant no.2, taken from the registration office, was lost hence, the defendant no.2 expressed his inability to deliver the same to the plaintiff no.1. The plaintiff no.1 in good faith did not take any action believing the words of the defendant no.2 to be true. The plaintiffs later learnt that the defendant no.2 sold 7 ‰ decimals on 13.09.1971 to the defendant no.1 for Rs.500/-. After the said sale the defendant no.2 was left with no land in plot no. 775 and in plot no.775 only the defendant no.1 and plaintiffs remained interested. On 13.09.1971 though the defendant 4 Second Appeal No. 40 of 2013 no.2 was in possession of only 7 … decimals of land; thus the defendant no.2 sold … decimal of land in excess of his ownership over the plot no. 775. Though the defendant no.1 purchased 7 ‰ decimals but she was put in possession of 7 … decimals of land. The defendant no.1 wanted to encroach upon ¼ decimals of land of the plaintiffs’ land by constructing a wall over it; which resulted in initiation of a proceeding under Section 144 and Section 145 Cr.P.C. On 02.12.1986 the plaintiffs learnt about the Demarcation Case No. 26 of 1985-86 in which the defendant no.1 made request for demarcation of 22 ‰ decimals of land in plot no. 775 of khata no. 22 of the Khas Mahal of Town of Daltonganj Mohalla, Abadganj and from the proceeding of the said demarcation the plaintiffs for the first time came to know that the defendant no.2 has executed two sale deeds on 13.06.1984 and 14.06.1984 each for 7 ‰ decimals of land of plot no. 775 of khata no. 22 of the village-Abadganj within the municipal town of Daltonganj and each sale deed shows a consideration amount of Rs.4,000/-. The plaintiffs filed objection petition in the aforesaid demarcation case but the Additional Collector on erroneous appreciation of law and facts ordered for demarcation. After purchase of the land by the plaintiffs, the plaintiffs extended their house in about 2 ‰ decimals in plot no. 775 in the portion adjacent to plot no. 776 in which their old house existed. The Kanungo gave a wrong report of showing the plaintiffs construction over only ‰ decimals of land in plot no. 775 and maize crops over 1 … decimals of land of plot no. 775 thus, the report of the Kanungo is wrong but the fact remains that the plaintiffs were found in possession of plot no. 775. The plaintiffs asserted that the defendant 5 Second Appeal No. 40 of 2013 no.1 has in her possession only 7 ‰ decimals of land in plot no. 775 over which she has raised a small bari measuring 15 decimals which is the suit land and in possession of the plaintiffs. As by the collusive acts of the defendant nos.1 and 2, a cloud of doubt was cast upon the title of the plaintiffs hence, the plaintiffs filed the suit. 6 In her written statement the defendant no.1 challenged the maintainability of the suit on various technical grounds and pleaded that plot no. 775 of khata no. 22 of village-Abadganj within the town of Daltanganj is comprised of 0.23 acres of land in the revenue record. The undisputed fact remains that the defendant no.2 was the real owner of the entire plot no. 775. The defendant no.1 acquired interest in the suit plot for the first time in the year 1945-46 when she acquired 0.04 acres of land out of plot no. 775 from the mother of the defendant no.2 by means of oral purchase and oral consent of the mother of the defendant no.2 and came in possession thereof. The defendant no.1 constructed the house thereon and has been residing in the same. The mother of the defendant no.2 entered into an agreement with the husband of the defendant no.1 to cultivate the remaining portion of plot no. 775 on Adhbatai and to keep watch over the land and accordingly the husband of the defendant no.2 encroached upon the entire land of plot no. 775 by erecting wooden fencing in the year 1947 and started growing vegetables thereon thus the defendant no.1 and her husband have been in uninterrupted possession over the suit land. The plaintiffs have got their ancestral house in the boundary of the said plot. The plaintiff no.1 entrapped the defendant no.2 to sell 19 acres and the rest land left after the oral 6 Second Appeal No. 40 of 2013 purchase of 0.04 acres in favour of the defendant no.1 as stated above. The defendant no.2 sold 19 decimals of land to the plaintiffs and defendant no.1 and executed the sale deed on receiving the part of the consideration amount. After execution of the sale deed, the plaintiff no.1 and his brothers did not pay the remaining consideration amount on demand. The plaintiff no.1 advised the defendant no.2 to withdraw the sale deed and got it cancelled as the brothers of the plaintiffs were not inclined to contribute the consideration amount. Accordingly the defendant no.2 withdraw the original sale deed and got it cancelled as per deed of cancellation hence, the sale deed executed by the defendant no.2 in favour of the plaintiff no.1 became a dead letter. The defendant no.1 was not having any document in respect of 0.04 acres of land of plot no. 775. She and her husband approached defendant no.2 to execute and register sale deed of 0.04 acres of land of plot no. 775 including the area of 0.04 acres of land already transferred by the mother of the defendant no.2 through oral purchase and the defendant no.2 sold, executed and registered a deed of sale for 0.07 ‰ acres of land out of plot no. 775 for consideration of Rs.500/-. After execution of the sale deed in favour of the defendant no.1 the plaintiff no.1 became jealous and wanted to come upon the land. The defendant no.1 did not allow the plaintiff no.1 to come over the suit land. Thereafter the plaintiff no.1 got a proceeding initiated under Section 144 Cr.P.C. against the husband of the defendant no.1 which was subsequently converted into a proceeding under Section 145 Cr.P.C. and since the husband of the defendant no.1 namely Baijnath Ram has only 0.07 ‰ acres of land 7 Second Appeal No. 40 of 2013 purchased by him by virtue of sale deed dated 13.09.1971 so he claimed only 0.07 ‰ acres in the proceeding in his own right and the remaining area on behalf of the defendant no.2 since the defendant no.2 was not made party to the said proceeding. Ultimately the said proceeding was decided in favour of Baijnath Ram. The husband of the defendant no.1 after the disposal of the proceeding under Section 145 Cr.P.C. got a sale deed executed and registered by defendant no.2 in favour of his wife being the defendant no.1 for the rest area of 0.15 acres of plot no. 775 and remained in exclusive possession of the entire plot no. 775 in his own right. The defendant no.1 then filed a case for demarcation of plot no. 775 to avoid the dispute in future. The demarcation was done on the order by the Additional Collector. After confirmation of the demarcation, the defendant no.1 enclosed the entire purchased land by brick built walls without any obstruction and resistance from the plaintiffs. Thus any right of the plaintiffs over the suit land has been extinguished by perfection of the title by the defendant no.1 by remaining in uninterrupted possession of the suit land for more than 12 years since the year 1984 when the defendant no.2 sold the same right in favour of the defendant no.1. 7 The defendant no.2 in his separate written statement also challenged the maintainability of the suit and further pleaded that the plaintiff no.1 negotiated with the defendant no.2 to purchase 0.19 acres of land of plot no. 775 but at the time of scribing of the sale deed the plaintiff no.1 expressed his inability to pay the consideration amount of Rs.2,500/- alone; since he got the sale deed scribed in his 8 Second Appeal No. 40 of 2013 own name and his brothers who were the other plaintiffs. The defendant no.2 denied the entire remaining plaint averments. The defendant no.2 denied the plaintiffs having paid any money to him towards consideration amount. The defendant no.2 next pleaded that at the behest of the plaintiffs he withdrew the original sale deed and got the sale deed dated 30.09.1969 cancelled by the deed of cancellation dated 14.09.1971. The defendant no.2 denied having issued any legal notice to the plaintiffs. 8 On the basis of the rival pleading of the parties, the learned trial court settled the following eight issues which reads as under:- Is the suit as framed maintainable? (I) (II) Has the plaintiffs got any valid cause of action for the suit? (III) Is the suit barred by law of limitation, adverse possession, estoppel, waiver and acquiescence? Is the suit barred under section 34 of Specific Relief Act? Is the suit valued properly? (IV) (V) (VI) Have the plaintiffs their right, title and interest over the suit land? (VII) Had the defendant no.2 any right to transfer any portion of the suit land on 13.06.1984 and 14.06.1984? (VIII) To what relief or reliefs, the plaintiffs are entitled? 9 In support of their case, the plaintiffs examined altogether 15 witnesses and proved the documents which have been marked Ext. 1 to Ext.6. On the other hand from the side of the defendants, the defendants examined altogether 10 witnesses and also proved the documents which has been marked Ext. A to F/1. 10 The learned trial court first took up issue nos. (VI) and (VII) together and after considering the evidence in the record came to the conclusion that it appears that the claim of the plaintiffs of paying the consideration amount of Rs.1,300/- and the advance amount of Rs.700/- appears to be false. The learned trial court also observed that it is unbelievable that a person like the plaintiffs purchasing the land 9 Second Appeal No. 40 of 2013 will sit idle and will not take any steps for mutation of the purchased land in their favour. There is no reference in the recital of the sale deed for payment of Rs.700/- in advance. The learned trial court also held that the plaintiff could not prove the delivery of the possession over the suit land to them whereas the defendant established possession over the suit land and answered both the issues against the plaintiffs. The learned trial court next took up issue no. (IV) and considered that in the proceeding under Section 145 Cr.P.C. it was held that the defendant no.1 was having possession and title both, in respect of the suit land, hence, the suit is barred by Section 34 of the Specific Relief Act. The learned trial court disposed of the issue nos. (III) and (V) being not pressed. The learned trial court then took up issue nos. (I) and (II) and came to the conclusion that the plaintiffs have not got title or possession over the suit land and there is no cause of action for the plaintiffs to file the suit and decided the issue nos. (I) and (II) against the plaintiffs. Lastly, the learned trial court took up issue no. (VIII) and held that the plaintiffs have failed to prove their case hence, the plaintiffs are not entitled to any relief and dismissed the suit. 11 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.43 of 1990 in the court of Principal District Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 12 The learned first appellate court after considering the materials in the record and the submissions made before it, 10 Second Appeal No. 40 of 2013 formulated the following points for determination for consideration:- “(I) Whether the plaintiffs/appellants had got right, title and interest in the suit land? (II) Whether the respondents/defendant no.2 had any right to transfer the suit land on dated 13.06.1984 and 14.06.1984?” 13 The learned first appellate court first took up the point for determination no. (I). The learned first appellate court made independent appreciation of the evidence in the record and considered that the documents filed on behalf of the plaintiffs was missing from the case record and went on to consider the oral evidence adduced by them. The evidence adduced by the plaintiffs appeared to be more believable and cogent to the learned first appellate court. Since as per the recital of the Ext. A- the original registered sale deed shows that the delivery of possession was handed over to the plaintiffs-appellants and as per Section 54 of Transfer of Property Act the title is passed on execution and registration of the sale deed in favour of the purchaser, even if the sale price has not been paid, therefore, the first appellate court went on to hold that the title accrued in favour of the purchaser-plaintiffs since the date of execution of the sale deed and thus the plaintiffs are entitled to right, title and interest over the suit property. The learned first appellate court considered that the learned trial court erred in appreciation of the pleadings as well as evidence in the record in their correct perspective. The learned first appellate court then took up the point for determination no. (II). The learned first appellate court then considered that the defendant no.2 has no right to cancel the sale deeds unilaterally. The learned first appellate court 11 Second Appeal No. 40 of 2013 considered Ext D in which it has been mentioned that the land which was sold in favour of the plaintiffs was cancelled by the respondent no.2 and one day prior to that, executed and registered sale deed in favour of the defendant no.1 Smt. Kishmatiya Devi for an area of 7 ‰ decimals with respect to khata no. 2 of plot no. 775. The learned first appellate court then considered that the transfer of the suit land one day prior to the cancellation is sufficient to show that the defendant no.2 had mala fide intention to transfer the suit land which was already transferred in favour of the plaintiffs vide Ext. A and delivery of possession of the suit land was also handed over to the plaintiffs as per the sale deeds. The learned first appellate court took note of the fact of denial of execution of Ext. 4 by the defendant no.2 so the plaintiffs have no right, title and interest over 1 khatha of land mentioned at Ext. 4 purchased by the defendant no.1 and went on to hold that the defendant no.2 had no right to execute the sale deed vide Ext. A/2 and A/3 in favour of the defendant no.1. The learned first appellate court further observed that remedy of the respondent no.2 (defendant no.2) was only to sue the appeal for recovery of the consideration amount mentioned in the deed in the event of non- payment of the price but he cannot avoid the same and the defendant no.2 was entitled to a charge upon the property for the unpaid part of the sale price, where the ownership of the property has been passed to the purchaser before the payment of the entire price. Thus, the learned first appellate court came to the conclusion that the defendant -respondent no.2 had no right to transfer the suit land on 13.06.1984 and 14.06.1984 which has already been sold to the 12 Second Appeal No. 40 of 2013 plaintiffs-appellants dated 30.09.1989 vide Ext. A and the learned trial court erred in appreciating the Ext. 3 and the learned first appellate court allowed the appeal and set aside the judgment and decree passed by the learned trial court. 14 At the time of Admission of this appeal, the following substantial questions of law was framed vide order dated 22.07.2019 by the Predecessor Judge in the roster :- “(i) Whether in view of the admitted fact that sale price was not paid to the vendor of the plaintiff, it can be said that sale has taken effect and the title has passed on to the plaintiff? (ii) Whether the suit is barred under Section 34 of the Specific Relief Act?” 15 So far as the first substantial question of law is concerned, the learned Senior Advocate appearing for the appellants fairly submits that Section 54 of the Transfer of Property Act, 1882 which defines sale as under:- “54. “Sale” defined.—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised.” Envisages that transfer of ownership also takes place, in exchange for a price, promised to be paid and as in this case vide Ext. A delivery of possession of the suit property along with some additional four decimals of property was made to the plaintiffs by the defendant no.2 on the plaintiffs making the promise to pay the price by a registered sale deed so even if the sale price was not paid to the vendor being the respondent no.2 by the plaintiffs, it can be said that the sale has taken effect and the title is passed on to the plaintiffs. 16 So far as the second substantial question of law is concerned, it is submitted by the learned Senior Advocate appearing for the 13 Second Appeal No. 40 of 2013 appellants that as the trial court has in no uncertain manner has held that the defendants are in possession of the suit land and the plaintiffs have failed to establish that they are in possession of the suit land, the learned first appellate court ought not have allowed the appeal but it is fairly submitted by the learned Senior Advocate appearing for the appellants that in the suit, the plaintiffs made a prayer of right, title and interest and confirmation of possession and the confirmation of possession includes delivery of possession, so the suit cannot be said to have been hit under Section 34 of the Specific Relief Act, 1963. 17 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been observed by the Hon’ble Supreme Court of India in the case of Vidhyadhar vs. Mankikrao & Another reported in AIR 1999 SC 1441, paragraph no. 35 of which reads as under:- “35. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part- paid and part-promised." Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of whole of the price at the time of the execution of sale deed is not a sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-. the sale would be complete.” (Emphasis supplied) that the words "price paid or promised or part-paid and 14 Second Appeal No. 40 of 2013 part-promised" indicate that actual payment of whole price at the time of the execution of sale deed is not a sine qua non to complete the sale. 18 Under such facts and circumstances and in view of the facts of the case, where vide Ext. A, which is a registered sale deed for transfer of ownership from the defendant no.2 to the plaintiffs have been made along with delivery of possession with a promise to pay the amount by the plaintiffs. So even if the sale price was not paid to the vendor by the defendants, still this Court has no hesitation in holding that the title has passed to the plaintiffs. Therefore, the first substantial question of law is answered in the affirmative. 19 So far as the second substantial question of law is concerned, it is pertinent to mention here that the learned first appellate court has only allowed the appeal but nowhere decreed the suit of the plaintiffs. It has only set aside the judgment and decree passed by the learned trial court but that does not itself means decreeing the suit of the plaintiffs without specifically mentioning whether the entire or part of the suit was decreed but so far as applicability of Section 34 of Specific Relief Act is concerned, in this case, the plaintiffs beside making the prayer for declaration of title and possession has also made the prayer for confirmation of possession and injunction restraining the defendants from interfering with the possession of the plaintiffs. So under such facts of the case, this Court has no hesitation in holding that the suit of the plaintiffs is not barred under Section 34 of the Specific Relief Act. The second substantial question of law is answered accordingly. 15 Second Appeal No. 40 of 2013 20 In view to the answers given by this Court to the two substantial questions of law, this appeal being without any merit is dismissed ex-parte but under the circumstances without any costs. 21 Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 21st October, 2024 AFR/ Sonu-Gunjan/- 16 Second Appeal No. 40 of 2013